Fairness shredded in the public square

Winona Ryder, centre, in the film version of Arthur Miller’s The Crucible, which dramatised the 17th century Salem witch trials.

What was new about the Salem witch trials was that they were held in public. Until then, there had been few accusations of witchcraft in Massachusetts and those there were had almost always involved a single defendant, who was typically acquitted.

However, the public hearings, which proved so popular that they had to be moved to the town’s largest gathering place, fuelled an atmosphere “much like a fever: heightened emotion, fear, dread, hostility, and a strong feeling of righteousness”.

Once the hysteria started feeding on itself, the denunciations spread rapidly to 23 towns and villages, with what might now be called whistleblowers turning on their partners, employers and neighbours. Facing increasingly intense pressure to try the accused and convict them, the authorities relaxed procedural safeguards and the rules of evidence with them.

By the time the governor quashed the process, four months after it had begun, 20 alleged witches had been executed and almost 100 others risked the same fate in a frenzy that saw every trial result in a conviction.

Meanwhile, the reputations of those who had been charged but not tried had been destroyed. As late as 1709, 17 years after the Salem witch trials ended, a petition was signed by 22 individuals calling for those who had been denounced to have their good names restored. They cited the fact that “Either ourselves or some of our Relations have Been Imprisoned and Blasted in our Reputations and Estates”; and given that the right to sue accusers for defamation had been removed during the craze, there was nothing they could do to repair their public standing.

Little wonder then that those trials’ long shadow haunted the American colonies for decades, helping to underpin the guarantee, enshrined in the constitution’s bill of rights, that criminal charges could be brought only after the prosecution had convinced a grand jury that it had credible evidence of the defendant’s guilt.

And little wonder too that the principle underlying the grand jury became a key element in the rule of law: that no one ought to be exposed to the ignominy of being publicly accused of being a criminal before a process, conducted entirely in private, determines that they have a serious case to answer.

To deviate from that principle is to inflict a punishment on individuals who have not been convicted of a crime. Nor is the punishment any less severe when it is inflicted by a commission whose task is to investigate possible instances of corruption.

On the contrary, the fact that corruption is universally regarded as deeply reprehensible but that its definition, unlike that for other offences, is inherently vague – spanning, it seems, everything from pork-barrelling to straight-out graft – means that the risks corruption proceedings pose to the reputation of those being investigated are especially great.

And compounding the risks is the likelihood that the people under investigation will have careers that depend entirely on being judged trustworthy, be it as parliamentarians or as public servants.

All that should be so obvious as to scarcely need saying; that with parliament considering the legislation establishing a national anti-corruption commission it needs to be shouted from the rooftops highlights the parlous state we’re in.

In part, that state reflects the damage done over a period of many years by repeated attacks on the distinction between the private and public spheres. Ever since the feminist slogan that “the personal is political” established itself as the leitmotiv of the age, the demand that all those one dislikes should spend their life in a goldfish bowl has become an accepted part of political discourse.

At the same time, the rise of social media, and the anonymity it allows and encourages, has unfettered the public expression of hatreds and resentments that would once have been judged socially unacceptable. That there is, as William Hazlitt noted two centuries ago in his classic essay On the Pleasures of Hating, “a secret affinity, a hankering after evil in the human mind”, is scarcely news; what has changed, however, is the uninhibited freedom with which “the spirit of malevolence” and the “battle of rage against rage” flow into the public square.

It is consequently unsurprising that we are witnessing a return to humiliation as a form of punishment – be it through the lynch gangs of the Twittersphere, which excel at converting their tantrums into torments, or through the use of “naming and shaming” as a form of social control.

That the reappearance of shame sanctions is not a move forward to a brave new world but a regression to a very old one should make us deeply uncomfortable. After all, the elimination of the pillory and the stocks was an integral part of the moral revolution that, in proclaiming the inviolability of human dignity, also led to the abolition of slavery.

It was not only because humiliation degrades its immediate victims that those punishments were eliminated; as the great 19th-century jurist and legal reformer Alexandre de Molenes put it, they deserved to disappear because tickling the public’s lust for blood, as shame sanctions do, “assimilates humans to animals, accustoming those who watch the spectacle to tread pity underfoot”.

And it was fundamentally unacceptable, de Molenes argued (as did his English contemporaries), for the state to unleash the uncontrollable passions of the mob on those who, from the moment they became the subjects of the state’s attention, it had an overriding duty to protect.

That duty of protection is surely even greater when the potential victims are merely the targets of an investigation, who have not even been formally charged, much less convicted. And the fact that public humiliations now echo further, more quickly and more permanently than ever, making the damage they cause effectively irreparable, should lead to an absolute prohibition on potentially damaging information being disclosed by the commission unless an extremely high evidentiary standard has been met.

Ultimately, no self-respecting Australian government ought to permit a form of lynch justice in which unaccountable posses, drawing on information extracted using the coercive powers of the state, destroy reputations and blight lives. Nor should it allow a commission that is not bound by the procedural safeguards imposed on the courts to inflict the punishment of being humiliated on innocent victims who have no scope for redress.

Of course, none of that will satisfy the Greens and the teals – had they been at Salem, they would have been rushing forward with the matches.

But they should remember this: no matter how aflame with self-righteousness they are today, they too may be consumed by the flames tomorrow.